Standard Terms of Sale and Delivery
of Products and Construction Materials.
1.
1.1
1.2
1.3
1.4
1.5
2.
2.1
2.2
2.3
2.4
2.5
3.
3.1
4.
4.1
4.2
5.
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
6.
6.1
6.2
General
These Standard Terms of Sale and Delivery apply to all offers, orders, order
confirmations and deliveries unless otherwise agreed in writing between the
Parties.
The selling timber merchant is called the "Seller" and the customer making a
direct purchase at the Seller is called the "Buyer". The Seller and the Buyer are
collectively called the "Parties".
The Seller performs a resale in its own name and at its own account of the
Products purchased by the Seller from the manufacturer, trading companies,
dealers and importers, collectively called the "Supplier" or "Suppliers".
Products to form part of a construction project on a permanent basis are called
"Construction Materials".
Construction Materials and Products are collectively called the "Product" or
"Products".
Order/order confirmation
All offers made by the Seller are subject to the Products being unsold.
The Seller's offer remains in effect for eight (8) days, unless otherwise agreed in
writing between the Parties.
A final agreement concerning delivery does not exist until the Buyer has received
the Seller's written order confirmation, and only such confirmation is binding.
The Buyer must observe any user manuals, catalogues and brochures delivered
with the Product and must collect the necessary information about the area of
use and the correct manner of use of the purchased Products.
The Seller assumes no responsibility for the contents of catalogues, brochures
and other information, including electronic information of any kind from the
Seller's Suppliers.
The Seller assumes no responsibility for any cost-free oral or written guidelines,
measuring, calculations etc. performed by an employee in connection with the
purchase of Products from the Seller.
Direct deliveries of timber cargo
If it has been agreed that timber cargo, including plywood and other plate
material, must be delivered from the Seller by way of direct import to Denmark
bypassing the Seller's warehouse, these Standard Terms of Sale and Delivery will
not apply, whereas – depending on the specific agreement – the general
conditions of import contracts in the timber industry, DANKON 2002, DANKON
2002 and the like may apply.
Prices
Prices appear from the Seller's price list in force from time to time or from a
forwarded order confirmation.
Delivery is from the Seller's warehouse or ex works unless otherwise agreed.
All prices are stated exclusive of freight, packing, VAT, duties and any dispatch
charges.
The Seller is entitled, on an ongoing basis and without notice, to change the
prices in price lists and offers unless a written agreement to the contrary has
been concluded.
Payment, retention of title and provision of security
Where the Buyer has an account with the Seller, the purchase price falls due for
payment according to the terms of payment applicable for the Buyer's account
with the Seller unless otherwise expressly agreed in writing. The purchase price
falls due for payment calculated from the time of delivery indicated, see clause
10.1, irrespective of whether the Buyer's situation makes it impossible to effect
delivery as agreed.
If the buyer does not have an account with the Seller, the purchase price falls
due for payment at the time of delivery indicated, see clause 10.1, and
irrespective of whether the Buyer's situation makes it impossible to effect
delivery as agreed.
In the event that the Buyer's payment(s) is/are not effected in due time and/or
the preconditions for granting the agreed credit are changed significantly, the
Seller is entitled to withhold all further deliveries to the Buyer, irrespective of
whether the deliveries are not connected in any way.
In the event that payment is effected by the Buyer after the due date, default
interest is payable on the due amount including VAT in accordance with the
Danish Interest Act (renteloven), unless another interest rate is customary or has
been agreed.
Default interest and fees charged, if any, fall due for immediate payment and
must be paid prior to all other debt using the payments received on an ongoing
basis.
The Seller will retain title to the Products sold, irrespective of whether delivery
has taken place, until the purchase price in full and interest and/or fees, if any,
have been paid.
The Seller is at all times in connection with or after the conclusion of the
agreement entitled to demand from the Buyer provision of adequate security for
the due payment of the purchase price, freight expenses, interest and other
costs.
In the event of non-payment in due time, the Seller is entitled to submit any
claim against the Buyer for collection without giving notice hereof. The Buyer is
under an obligation to pay the collection costs fixed by the debt collector which
may exceed the amounts appearing from the "Executive Order on out-of-court
collection costs in the event of delayed payment" as amendments.
The Seller is entitled to transfer, in full or in part, any claims raised against the
Buyer to a third party without obtaining the prior consent of the Buyer.
Cancellation and change of orders
The Buyer is not entitled to change or cancel an order after submission hereof to
the Seller.
Where the Seller in spite of clause 6.1 separately approves a cancellation or
change, the Buyer is under an obligation to pay the costs associated with the
cancellation or change, including costs of storage and safeguarding of quality and
capabilities as well as interest payments as a consequence of a postponed time of
delivery, the minimum amount, however, being DKK 500. In the event of total or
partial cancellation, the Buyer is furthermore under an obligation to compensate
the Seller for loss of profit.
7.
7.1
7.2
7.3
7.4
7.5
DB – 12
© 2012 Copyright – DB
DANSKE BYGGECENTRE
Returned Products and returnable packaging
Products cannot be returned to the Seller.
Where the Seller in spite of clause 7.1 accepts by separate agreement that
Products are returned, such Products must be unused, non-defective and in
the original and intact packaging. The Products must be free of dirt and dust
etc.
Products that have been manufactured specially and/or have been ordered
for the Buyer can, however, not be returned to the Seller.
Products the return of which has been approved will be credited by the Seller
with deduction of the fee fixed by the Seller to cover costs in connection
with the return and the Seller's sales costs.
Returnable packaging is credited by the Seller upon free delivery in
undamaged conditions within three (3) months from delivery from the Seller.
The amount credited will be subject to a deduction to cover wear and tear,
handling and freight expenses etc as fixed by the Seller.
8.
8.1
Sample products
Sample products only show colour, size and quality in general and therefore
the Seller is not responsible for any variances unless such variances are
significant and of an unpredictable size for the Buyer compared with the
displayed sample Products.
9.
9.1
9.2
Guarantee
The Seller does not provide a separate guarantee on Product deliveries.
The Buyer accepts to only be entitled to raise a claims against the Seller in
accordance with a supplier's guarantee with respect to a Product directly visà-vis the Supplier, and in this connection, the Seller accepts only to
communicate information on a supplier's guarantee, if any, to the Buyer.
10. Delivery
10.1 The time of delivery stated in the order confirmation is only directional for
the Seller unless otherwise agreed in writing between the Parties.
10.2 Where a fixed time of delivery has been agreed, the Seller is entitled to
postpone the time of delivery in the following cases:
a) Force majeure, cf. clause 15
b) In the event of delay caused by the Seller's Suppliers,
carriers or other third parties.
c) Unusual weather conditions and climatic impact.
d) Trade disputes irrespective of the reason for such disputes.
e) Public order or injunctions which the Seller should not have
foreseen at the time of conclusion of the agreement.
10.3 If the Parties have reached agreement regarding delivery at the Buyer's
address or another location indicated by the Buyer, the Seller will deliver the
Product as close to the place of use as a truck, according to the discretion of
the driver, can get without danger of getting stuck or damaging the vehicle or
the surroundings.
10.4 The Buyer is under an obligation to make available the staff necessary for
unloading.
10.5 Where the Buyer does not meet the obligation stipulated in clause 10.4, the
Seller will be entitled, but not obligated, to effect delivery at the place of
delivery thereby discharging the Seller of its obligations, irrespective of
whether a representative of the Buyer is present.
10.6 The risk of the accidental destruction of or damage to the Product passes to
the Buyer upon delivery. Delivery note or the carrier's requisition form is
considered documentation of delivery.
10.7 Expenses incurred due to any waiting time in connection with unloading at
the Buyer's address or another location indicated by the Buyer are borne by
the Buyer. The Buyer must also bear any other costs resulting from the
Buyer's inability to receive the Products at the agreed time of delivery.
11. Complaints and responsibility in the event of delay
11.1 The Buyer must complain in writing immediately upon establishing a delay.
The Buyer will otherwise forfeit any claim in respect of the delay.
11.2 In the event of minor delays, subsequent delivery is effected by the Seller.
11.3 In the event of significant delay on the part of the Seller, the Buyer is
entitled to revoke the purchase. Where successive delivery has been agreed,
the Buyer is, however, only entitled to revoke the delayed sub-delivery.
11.4 Where the Buyer revokes the agreement in accordance with clause 11.3, the
Buyer is entitled to compensation from the Seller for the additional costs
incurred in the Buyer's attempts to procure a similar Product from another
party. Such compensation must, however, not exceed the invoice value of the
delayed delivery with an addition of 10%.
11.5 In addition to the compensation mentioned in clause 11.4, the Buyer is not
entitled to any form of compensation due to the Seller's delay. This applies
irrespective of whether the Buyer revokes or maintains the purchase.
12. Duty of inspection and complaints
12.1 Immediately upon the surrender or receipt of the Products and always before
the Buyer starts using, preparing or incorporating the Products, the Buyer
must inspect the delivered Products in order to ascertain that they are nondefective and that the any differences in colour and shade are within the
acceptable levels.
12.2 Complaints about defects, including differences in quantity which the Buyer
detected or ought to have detected at the inspection mentioned in clause
12.1 must be made by the Buyer to the Seller immediately and by no means
later than eight (8) days after the date of delivery of the Products to the
Buyer in order to be considered. In the event of other defects, complaints
must be made immediately after the time at which the Buyer should have
detected the defect and within one (1) year at the latest, see, however,
clause 14 below regarding delivery of Construction Materials for certain
construction projects.
12.3 Where the Products are to be fitted or included in a fitting, the Buyer must
ensure that the Products – prior to the start of the fitting – are inspected with
a view to finding any defects, as complaints cannot be made after any fitting
has been started. In the event of delivery of Construction Materials for
certain construction projects, cf. clause 14 below, the Buyer will, however,
still be entitled, subject to the limitations set out in clause 14, to file a
complaint over hidden defects, which the Buyer could not detect or ought not
to have detected before or in connection with mounting, fitting or
incorporation.
15. Force majeure
15.1 In the event that delivery, timely delivery or conforming delivery is prevented
or delayed as a result of events beyond the Seller's control, including, but not
limited to, industrial disputes, operational disruptions, transportation
difficulties or the non-delivery etc. by another third party, including the
insolvency of a Supplier or manufacturer, or the like, the Seller shall be entitled
at its own choice and exempt from liability to postpone delivery or cancel in
whole or in part the order upon written notification to the Buyer as soon as
possible.
13. Liability of defects in the objects sold
13.1 In case of complaint about defects in due time, see clause 12.2 or clause 14,
the Seller must remedy the defect or effect redelivery at the Seller's
discretion.
13.2 If the Seller does not remedy a defect or effect redelivery, see clause 13.1
within a reasonable time after the time at which the Seller has complained in
accordance with clause 12 or clause 14, the Buyer is entitled to notify the
Seller in writing that the agreement is terminated as regards the part of the
delivery which is defective.
13.3 In the event of termination of the agreement on the part of the Buyer, the
Buyer is entitled to demand damages from the Seller for the additional costs
which the Seller has incurred in connection with procuring similar Products
from another Supplier.
13.4 Notwithstanding the above, the Seller's liability for damages in the event of
defects is always limited to the invoice value of the defective Product(s) with
an addition of 10%.
13.5 The Seller is not liable for defects or for failure to deliver replacement
product(s) in addition to the rules set out in clauses 13.3 and 13.4. This
applies to any loss caused by such defect, including operational loss, loss of
profits and any other financial consequential loss. This limitation in the
Seller's liability does, however, not apply in the event of the Seller's gross
negligence.
13.6 The Buyer's demand for remedy, redelivery or termination lapses where the
Products have not been stored or used correctly and in the usual manner and
in accordance with the Seller's instructions.
13.7 The Seller is not liable for any damage caused by incorrect and inappropriate
use of the delivered Products.
16. Product liability
16.1 The Seller shall be liable under the Danish Product Liability Act to the extent
that the Seller is liable in damages under the mandatory provisions of the Act
and to the extent that the liability of the Seller is not legally limited. The Seller
shall furthermore be liable for any damage caused by Products supplied by it
where such damage occurs as a result of the Seller's gross negligence and the
liability of the Seller is not legally limited.
16.2 The Seller's liability for damage caused by a Product supplied by it shall as
regards damage to other property (in Danish: erhvervstingskade) be limited to a
maximum of DKK [To be filled out].
16.3 Where the Seller is liable for damage caused by a Product supplied by it, cf.
clauses 16.1 and 16.2 above, but where the damage is attributable in part to
the acts or omissions of the Buyer, the liability shall be shared equally between
the Parties according to the degree of negligence.
16.4 Where the Seller is held liable for damage to the property of a third party, the
Buyer shall indemnify the Seller for any liability imposed on the Seller and
which exceeds the liability of the Seller under the above provisions. The Buyer
agrees that any claim brought against it may be brought before the
court/arbitration tribunal considering any claim for damages by a third party
against the Seller concerning Products supplied by the Seller through the Buyer
to a third party.
16.5 The Seller shall not be liable in any event whatsoever for any business
interruption, loss of profits or other indirect loss.
14. Building delivery clause – extended period in which to seek redress for
defective Products
14.1 In case of delivery of Construction Materials, the following rule applies as a
modification of clause 12.2: the Seller's liability for defects in Construction
Materials expires five (5) years after handing over of the construction project
of which the Construction Materials form part. However, in connection with
delivery to warehouse or resale, the liability expires no later than six (6)
years after the handing over to the Buyer, if the Supplier of the defective
Construction Materials upon registration via DB as acceded "Udvidet ansvar"
(extended liability) at the time of the Seller's order confirmation to the Buyer
has assumed liability vis-à-vis the Seller for defects in the Construction
Materials in the corresponding period. The Buyer must, however, have raised
a complaint against the Seller regarding other defects in the Construction
Materials immediately after the time when the Buyer ought to have detected
the defects and no later than one (1) year thereafter.
14.2 In connection with deliveries of Construction Materials involving a consumer
acting as contractor it applies, as an additional modification of item 12.2,
that liability for defects will lapse ten (10) years from delivery of the
construction project in which the Construction Materials form a part, if the
Supplier of the defective Construction Materials upon registration via DB as
acceded "Udvidet ansvar" (extended liability) at the time of the Seller's order
confirmation to the Buyer has assumed liability vis-à-vis the Seller for defects
in the Construction Materials in the corresponding period of 10 years from
hand-over of the construction project. The Buyer must, however, have filed a
complaint with the Seller concerning other defects in the Construction
Materials immediately after the time when the Buyer ought to have detected
the defects and no later than one (1) year thereafter.
14.3 Items 14.1 and 14.2 are not applicable to defective deliveries of special order
items (Goods from Suppliers with whom the Seller had not concluded a
cooperation agreement at the time of the sale), nor are they applicable to
imported goods (goods imported directly or indirectly), unless the Supplier via
registration via DB as acceded "Udvidet ansvar" (extended liability) has
assumed no less than what is stipulated in clauses 14.1 and 14.2, respectively,
on the extended period in which to redress for defective special order items.
14.4 The Buyer's legal position vis-à-vis the Seller is not better than the Seller's
legal position vis-à-vis the Supplier in question, irrespective of whether the
Supplier has been registered via DB as acceded "Udvidet ansvar" (extended
liability), cf. above, and the Buyer is thus not entitled to raise any claim for
compensation etc. against the Seller, which in scope exceeds any such claim
as the Seller is entitled to raise against the Supplier, just as the size of the
claim cannot exceed the size of the claim in fact received by the Seller from
the Supplier or his estate after deduction of costs, and unless the Buyer has
complied with the deadline for filing a complaint as set out in clauses 14.1
and 14.2.
14.5 The current registration of the Supplier via DB as acceded "Udvidet ansvar"
(extended liability) is continuously posted by the Seller on the Seller's website
and/or on www.db12.dk. In the event of discrepancies between the
information on registration on www.db12.dk and information on registrations
on the Seller's website, the information on registration on www.db12.dk will
apply, unless otherwise agreed between the Parties.
14.6 If it is deemed to be substantiated that is not possible – or would be very
difficult – to succeed in a claim regarding defects in Construction Materials
against the Buyer or against subsequent buyers, the Seller acknowledges that
the claim can also be raised directly against the Seller. Also in such case, the
Seller will only assume liability for defects if the Seller's own delivery of
Construction Materials is defective and only if it follows from the Seller's own
contractual relationship with the Buyer, including these Standard Terms of
Sale and Delivery. However, in any event, the Seller acknowledges that an
action may be brought against it and the Buyer or subsequent buyers as a
consequence of the Parties mutual relationship provided that such
proceedings are brought in Denmark and are to be settled according to Danish
law.
17. General limitation of liability and assignment of claims against Seller's
Suppliers
17.1 The Seller's liability shall exclude – irrespective of whether negligence has been
established – daily penalties, business interruptions, loss of profit, loss of time
or other indirect losses – whether based on the general law of damages or on the
more general damages framework or another basis.
17.2 Where the Seller's Supplier or other third party is liable towards the Seller for
delays or defects, the Seller shall to the widest extent possible be prepared to
assign its claim against the Supplier or third party, as the case may be, to the
Buyer.
18. Disputes
18.1 Any dispute between the Parties shall be settled by arbitration, unless the Seller
decides that the dispute shall be settled before the ordinary courts of law.
18.2 All disputes must be settled in accordance with these Standard Terms of Sale
and Delivery and otherwise according to Danish law (the international Sale of
Goods Act does not, however, apply).
18.3 If the dispute is to be settled by arbitration, the arbitration court shall be set
up in accordance with the rules provided in s. 47 of the General Conditions for
the provision of works and supplies within building and engineering (AB 92).
18.4 Any inspection and survey by experts shall be conducted in accordance with the
rules provided in s. 45 of AB 92, unless an inspection and survey must be
conducted as part of legal proceedings commenced before the ordinary courts.
18.5 If the dispute is to be settled by the ordinary courts of law, the home court of
the Seller shall have jurisdiction, irrespective of the place of permanent or
temporary residence of the Buyer.
19. Commencement
19.1 These Standard Terms of Sale and Delivery enter into force on 1 November 2012
and shall apply for orders received from and including that date.
Member of